David
N. Hobson, Jr., argued the cause for respondent. With him on
the brief was Hobson and Associates, LLC.

Before
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Judge.

Case
Summary:

Mother
appeals from a supplemental judgment changing the custody of
a minor child, S, to father and a second supplemental
judgment awarding father attorney fees. On appeal, mother
assigns error to the trial court's conclusion that a
change of circumstances sufficient to justify a change of
custody had occurred. Specifically, mother argues that, even
assuming that the trial court's findings were factually
correct, none of its six bases for determining a change of
circumstances occurred were legally sufficient, individually
or taken together, to justify changing custody to father.
Mother also assigns error to the trial court's award of
attorney fees to father. Held: The trial court erred
in changing custody to father. Viewing the evidence, as
supplemented and buttressed by permissible derivative
inferences, in the light most favorable to the trial
court's disposition, none of the six circumstances on
which the trial court relied-either individually or taken
together-reflected a change of circumstances legally
sufficient to justify a change of custody. Further, because
the trial court erred in changing custody, it also erred in
awarding attorney fees to father.

Mother
appeals from a supplemental judgment changing the custody of
a minor child to father and a second supplemental judgment
awarding father attorney fees. As part of father's motion
to show cause why he should not be granted sole custody,
father contended that a change in circumstances since mother
and father's original dissolution proceeding had
occurred, justifying a change in custody of mother and
father's child, S. Specifically, father alleged that
mother has an anxiously attached parenting style that causes
her difficulty in making medical and educational decisions
for S and makes it difficult for her to get S to appointments
and school on time. The trial court agreed with father. It
listed six considerations that it concluded constituted
changes of circumstance justifying a change in custody,
decided that it was in S's best interest to change sole
legal custody from mother to father, and awarded attorney
fees to father.

On
appeal, mother advances three assignments of error. First,
she assigns error to the trial court's conclusion that a
change of circumstances has occurred. Second, she assigns
error to the trial court's decision that it was in
S's best interest to change custody from mother to
father. And, third, she assigns error to the trial
court's decision to award attorney fees to father.
Because we agree with mother that the trial court's
findings and the evidence in the record supporting those
findings are not legally sufficient to constitute a change of
circumstances justifying a change in custody, we address only
mother's first and third assignments of error.
Accordingly, we reverse the judgment awarding custody to
father and reverse the judgment awarding attorney fees to
father.

Mother
asks us to exercise our discretion to review the record
de novo. We exercise our discretion to review de
novo only in exceptional cases, and decline to do so
here. ORAP 5.40(8). Instead, we are bound by the trial
court's factual findings provided that they are supported
by any evidence, and we review legal conclusions for errors
of law. Sconce and Sweet.249 Or.App. 152, 153, 274
P.3d 303, rev den,352 Or. 341 (2012). Under that
standard, "we view [288 Or. 676] the evidence, as
supplemented and buttressed by permissible derivative
inferences, in the light most favorable to the trial
court's disposition and assess whether, when so viewed,
the record was legally sufficient to permit that
outcome." Ibarra and Conn.261 Or.App. 598,
599, 323 P.3d 539 (2014) (internal quotation marks omitted).
We state the following relevant facts consistently with that
standard.

The
parties married in April 2009, separated in October 2010, and
divorced in July 2011. During their separation and the
pendency of their divorce, S lived with mother. Mother was
initially granted sole legal custody of S, subject to father
receiving parenting time as ordered by the court.

Prior
to the original grant of custody, mother was having
difficulty making medical decisions for S, including deciding
if and when S should receive vaccinations. In fact, in a
limited judgment entered prior to the judgment of
dissolution, the trial court specifically found that
"[t]here ha[d] been a significant gap in the health care
of [S]." Taking mother's difficulties related to
providing ...

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